FEATURED ESSAY

Australia’s unresolved war crimes challenge

Tim McCormack

Tim McCormack is professor of law, Melbourne Law School, adjunct professor of law, the University of Tasmania and special adviser on international humanitarian law to the prosecutor of the International Criminal Court in The Hague. He was an international observer during phase two of the Turkel Commission of Enquiry into Israel’s Processes for Investigation of Alleged War Crimes (Jerusalem, 2011–13). He served as an expert law of war adviser to Major Michael Mori for the defence of David Hicks before the US Military Commission (Guantanamo Bay, 2003–07) and as amicus curiae on international law issues for the trial of the former Serbian President, Slobodan Milosevic (The Hague, 2002–06).

Tim was the foundation director of the Asia Pacific Centre for Military Law (2001–10) and foundation Australian Red Cross Professor of International Humanitarian Law (1996–2010)—both at the Melbourne Law School.

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Despite allegations of there being war criminals among many ethnic communities immigrating to Australia from situations of protracted and violent armed conflict, successive Australian governments of both political persuasions have refused to allocate resources to a proactive investigative process that may lead to criminal prosecutions in Australia. There are many practical reasons to explain the aversion to such a policy, but those practicalities did not stop the Hawke government taking a bold initiative in 1987 to establish the Special Investigations Unit (SIU) within the Commonwealth Attorney-General’s Department. On the basis of SIU investigations, the Commonwealth director of public prosecutions initiated criminal proceedings against three individuals in South Australia in the early 1990s. None of those proceedings resulted in a conviction, and, ever since, attempts to encourage subsequent governments to recommit to a similar policy have failed. The author argues for a renewed proactive policy decision, while acknowledging the counter-arguments. In doing so he draws out the complexity of choices that one may be called upon to make in political life.

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Laws can embody standards; governments can enforce laws—but the final task is not a task for government. It is a task for each and every one of us. Every time we turn our heads the other way when we see the law flouted—when we tolerate what we know to be wrong—when we close our eyes and ears to the corrupt because we are too busy, or too frightened—when we fail to speak up and speak out—we strike a blow against freedom and decency and justice.

—Robert F Kennedy

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War criminals among us?

Australia’s multicultural experiment has been remarkably successful. Wave after wave of migrants from overseas have made their home here. We enthusiastically embrace food, music and culture and we readily tolerate linguistic and religious diversity from all over the world. I consider myself fortunate to live in the inner Melbourne suburb of Brunswick in close physical proximity to Sydney Road, and I revel in its many manifestations of ethnic diversity—Greek, Italian, Lebanese, Egyptian, Cypriot, Turkish, Sub-Saharan African, Indian, Chinese, Japanese, Vietnamese, Thai—in restaurants, cafes, bars, clubs, supermarkets, grocers, shops. Within a radius of not more than three kilometers from my home, there are places of spiritual worship for Buddhists, Muslims, and Christians of many denominations—Russian, Serbian and Greek Orthodox, Roman Catholic, Maronite, Coptic and Protestant of many types—and people are free to choose to worship or not as they see fit. Sydney Road and its environs may well be more ethnically diverse than many other parts of our nation, but for me it represents all that is positive about the way in which Australia has consistently accepted migrants from other countries.

Despite murmurings of latent racism in Australia, we have been mercifully free of the sort of inter-ethnic conflict that has so wracked other nations. However, if you scratch the surface of any ethnic community from a situation of protracted conflict (and there are many such communities—from Africa; the Middle East; Central and Eastern Europe; Central, South and South-East Asia; the Pacific; Latin America) you soon discover allegations that some within the communities are responsible for war crimes, crimes against humanity or genocide and yet are enjoying their new lives in Australia with apparent impunity for past atrocities.

Imagine the East Timorese father of two young soccer-mad boys who, like so many other parents around the country, drives his kids to training twice a week at the local junior soccer club and sees the coach of one of the other club teams taking training of his squad. The coach is also from East Timor, and the soccer dad knows that the coach was a member of one of the pro-integrationist militia responsible for destroying the East Timorese village of the soccer dad’s sister and her family. The sister was raped and her family murdered in front of her eyes and she is a shadow of her former self. Every time the soccer-dad sees the coach, he wonders whether it was the coach himself who wrecked his sister’s life. He sees the coach laughing with his players and wonders why he should be allowed to enjoy a comfortable life in Australia without ever being held accountable for his past wrongs.

Or imagine the Chilean woman who buys her meat from the local Spanish-speaking Argentinean butcher because he prepares her family’s favourite spiced sausages and because his meat is always fresh and of good quality. But every few weeks she finds herself in the same butcher’s shop as a former member of General Pinochet’s secret military police who was part of a death squad that brutalised the woman’s extended family because they were supporters of the ousted Allende regime. The woman hears the other customer speaking politely to the butcher, asking him about his family, and she has to walk out of the shop and come back later because she feels sick to her core at the hypocrisy of his humanity.

These scenarios are, of course, fictional, but indicative of compounded trauma experienced by many newer Australians on an all too regular basis.

Consider some extensions to the hypotheticals for a moment. What if you happened to be the local member of parliament and some within your electorate raised allegations similar to those above? Imagine that you have a sizeable ethnic community within your electorate and members of that community are pleading with you not to remain indifferent to the allegations of war criminals among the community. What actions might you be willing to take in support of your local electorate? What if the allegations are against otherwise respected leaders within the community? What if the group agitating for action is seen as a ‘splinter’ group within the community—a divisive influence on otherwise harmonious community relations? At what point do pragmatic issues cloud or dilute what might otherwise appear to be clear-cut issues of principle?

Arguments for and against inaction

One common and entirely understandable response to this dilemma is to argue that the Australian multicultural experiment has been successful, at least in substantial part, precisely because ethnic communities from conflict situations have left their conflicts in their countries of origin and have not transported them to Australia. During the 1990s and the shocking conflicts in the Balkans, for example, the Australian Serb, Croat, Bosnian Muslim, Kosovar Albanian and Macedonian communities worked hard to avoid an eruption of inter-ethnic violence here. Australian citizens of one or other ethnic descent travelled back to the Balkans and participated in the fighting with their ethnic group but inter-ethnic tension here was suppressed. There have been moments of significant tension—for instance at the Australian Tennis Open and in some of the soccer matches involving teams established and maintained by particular ethnic communities. The establishment of the A-League was, in part, driven by a desire to dismantle the traditional ethnic community-based soccer allegiances, and that initiative seems to have been successful, with the focus of allegiance, support and recruitment shifting from ethnic identity to physical location and strong team building.

But a counter argument can also be mounted. Successive Australian governments of either political persuasion have consistently supported initiatives for global justice on the basis that some atrocities are so egregious, so repugnant to any notion of human decency, that to allow them to go unchallenged is not only unpalatable but also unacceptably unprincipled. Why would we support the establishment and ongoing work of international criminal courts and tribunals but refuse to pursue the prosecution of war criminals before Australian courts?

Australian experience of war crimes trials—1940s and 1990s

In the immediate aftermath of World War II, Australia seconded Justice Sir William Webb, formerly of the Supreme Court of Queensland and then of the High Court, to preside over the Tokyo War Crimes Trial because of our national commitment to accountability through law for wartime atrocity. The Tokyo Tribunal was the Pacific equivalent of the Nuremberg Tribunal for senior Nazi leaders in Europe. Both the Tokyo and the Nuremberg Tribunals were established by the victorious Allied Powers to try the most senior political, military and business leaders from the defeated Axis powers. While the Tokyo Trial was being conducted against 28 senior Japanese military and political leaders (excluding the Emperor himself, much to Webb’s and the Australian government’s disgust), thousands of so-called ‘subsidiary’ trials were conducted by various Allied nations against lower-ranking German and Japanese military personnel. In our case, Australian military courts established pursuant to the War Crimes Act 1945 conducted 300 trials of more than 820 Japanese for war crimes perpetrated against Australian and other Allied prisoners of war as well as against local civilian populations. Three trials were conducted in Darwin and the rest in New Guinea (190 trials in Rabaul and 35 on Manus Island), Borneo, Singapore and Hong Kong. This extensive war crimes trial experience is still little known in Australia, and yet it continued until 1951—significantly later than all other Allied trials. Ultimately, both the United States and the United Kingdom pressured Canberra to discontinue the trials because both Washington and London considered that the time for criminal accountability had passed and that it was more important to begin rebuilding relationships with Germany and with Japan.

Australia’s trials of Japanese were largely for atrocities perpetrated against Australian prisoners of war. The next Australian experience of war crimes trials involved atrocities perpetrated overseas against non-Australian victims. In 1986, Mark Aarons, then an ABC investigative journalist, produced a radio program entitled Nazis in Australia exposing the presence of hundreds of former Nazis who had migrated after the war. Aarons explained that some of the former Nazis had arrived in Australia by concealing their wartime involvement, but that others had been actively recruited by the Australian Security Intelligence Organisation (ASIO) for their expertise in intelligence gathering against the Soviet Union. For Australia, as for other Western nations with the onset of the Cold War, anti-communism was a higher priority than anti-fascism.

Aarons’ exposé resulted in a Commonwealth Commission of Enquiry headed by Andrew Menzies QC. The Menzies Report confirmed the allegations, identified hundreds of suspected Nazi war criminals in Australia and recommended both the establishment of a special task force to investigate the allegations and the enactment of legislation to enable the prosecution of Nazi war crimes. The Hawke government adopted the recommendations, established the Special Investigations Unit within the Commonwealth Attorney-General’s Department and amended the War Crimes Act extending jurisdiction for Australian courts over war crimes committed in Europe between 1939 and 1945. Even though the atrocities under consideration were perpetrated externally to Australia by non-Australians against non-Australian victims, prime minister Bob Hawke and deputy prime minister and attorney-general Lionel Bowen were both unwilling to allow Australia to become a ‘safe haven’ for Nazi war criminals. Speaking on the draft legislation, Lionel Bowen said:

[W]here there is evidence of serious war crimes being committed during World War II and there being no punishment of the offenders, the Government has a duty statement [sic] to ensure that justice is done, no matter how long since the events in question have passed. Accordingly, the War Crimes Amendment Bill 1987 is designed to ensure that any serious criminal activities committed in the course of World War II, the commission of which is established beyond a reasonable doubt, by persons who are now residents or citizens of Australia, will not go unpunished. … [T]he basic scheme contained in the Bill for the prosecution of persons alleged to have committed war crimes during World War II involves selecting the most serious criminal acts encompassed within international law relating to war crimes and making them triable in our criminal courts in accordance with the normal rules, procedures and standards applying to our criminal trials. The Government believes that this approach provides the most comprehensive and efficacious answer yet devised anywhere in the world to the difficulties of prosecuting alleged war criminals in a jurisdiction other than that of the place where the alleged crimes were committed.

After years of complex investigative work in Australia and overseas, the Special Investigations Unit transferred files on four suspects to the Commonwealth director of public prosecutions (DPP) recommending that the DPP lay charges. The DPP initiated criminal proceedings against three accused: Ivan Polyukhovich, Mikolay Berezowski and Heinrich Wagner. The cases against Berezowski and Wagner both terminated at committal stage (insufficient evidence to warrant a trial in the case of Berezowski and withdrawal of charges on the grounds of the ill-health of the accused in the case of Wagner) and only the case against Polyukhovich actually went to trial. Before the trial commenced, Polyukhovich’s lawyers challenged the constitutional validity of the amended War Crimes Act in the High Court. One of Polyukhovich’s arguments was that the legislation offended the presumption against retrospective criminal law. The majority of the High Court disagreed and distinguished retrospective criminalisation of conduct not criminal at the time it was committed (which is prohibited) from the granting of retrospective jurisdiction to Australian courts over conduct unquestionably criminal at the time it was committed (which is permitted). The amended War Crimes Act fell into the permitted category because the conduct had to have constituted a violation of: (1) international law at the time it was committed; and also (2) Australian domestic criminal law at the time it was committed if hypothetically the conduct had been committed in Australia.

The trial against Polyukhovich proceeded and despite the accused’s unsuccessful suicide attempt during the proceedings, the trial was completed and the jury returned a not guilty verdict. Almost 50 years after the alleged atrocities, the prosecution was unable to adduce sufficient admissible evidence to prove the case against the accused. The government’s reaction to the failure to secure a single conviction was to close down the SIU and to terminate any further efforts to investigate and prosecute former Nazis in Australia.

A limited reactive approach

In the years since, successive Australian governments have refused to take a proactive approach to alleged war criminals in Australia. Instead, action has only been taken reactively in two limited sets of circumstances.

The first involves applicants for refugee status. Article 1F(a) of the 1951 UN Refugees Convention, replicated in s. 36(2C)(a)(i) of Australia’s Migration Act 1958, denies the protection of the convention to those for whom ‘there are serious reasons for considering that’ they have ‘committed a crime against peace, a war crime or a crime against humanity’. In the course of interviews by officials of the Department of Immigration and Border Protection to determine whether or not the applicant faces a well-founded fear of persecution if returned to their country of origin, from time to time the applicant describes their involvement in a particular organisation or arm of government that leads the administrative decision maker to the view that Article 1F applies and that the applicant is not entitled to refugee status. Sometimes the applicant appeals the decision. Most appeals against refugee status decisions are heard by the Refugee Review Tribunal but, by quirk of legislation, appeals against adverse Article 1F findings are heard by the Administrative Appeals Tribunal. In most years there are at least one or two AAT decisions on Article 1F appeal cases.

The Article 1F exclusion process is certainly not an exhaustive mechanism for identifying those who should not be welcomed in Australia. Some individuals responsible for atrocities are caught by this process and deported but many are not. Administrative decision makers from the Department of Immigration and Border Protection are not criminal investigators and, even if they had such skills, this process only ever deals with applicants for refugee status and not those arriving in Australia under other migration categories.

The second reactive mechanism is in response to extradition requests from other countries. Australia has only received three requests for extradition in relation to alleged war crimes, crimes against humanity or genocide. None of the three individuals involved have actually been extradited.

In the first of the three cases, Konrad Kalejs was the subject of an extradition request from Latvia in 2000. The Latvian authorities alleged that Kalejs had been a senior figure in the infamous Arajs Kommando and responsible for World War II atrocities against the Latvian Jewish community. Kalejs had migrated to Australia in 1950 and subsequently acquired citizenship but had later lived overseas. He had already been deported from the United States and from Canada and had also been threatened with deportation from the United Kingdom—all in relation to his World War II activities. A Melbourne magistrate found that Kalejs could be extradited to Latvia but, in late 2001, while his legal representatives were appealing that decision, Kalejs died and proceedings against him were terminated.

More recently, Charles Zentai was the subject of an extradition request from Hungary in 2005 in relation to an alleged murder of a Jewish man in Budapest 1944. A Perth magistrate found that Zentai could be extradited but his lawyers appealed the decision. The High Court of Australia decided in 2012 that Zentai could not be extradited because the alleged offence—the war crime of murder—was not a criminal offence in Hungary in 1944 even though ‘ordinary’ murder clearly was a crime at the time. Zentai’s extradition was avoided on the basis of a technicality. Had Hungary requested extradition for the domestic crime of murder and not for the war crime of murder, the extradition could have proceeded.

Many would consider the High Court decision nonsensical. Why should it matter what specific type of murder Hungary requested extradition for? It is a requirement of Australia’s Extradition Act 1988 that the alleged offence that is the subject of the extradition request constitute a serious ‘offence against the law of the [requesting] country’, and the High Court chose to interpret that requirement narrowly. Given that Zentai is now 93 years of age[1], it is highly unlikely that any new extradition proceedings will be initiated against him.

The third request was for the extradition of Dragan Vasiljkovic (aka Daniel Snedden) by Croatian authorities in 2006. Vasiljkovic is an Australian citizen of ethnic Serb descent who travelled back to the Balkans and allegedly led a Serb paramilitary group in the conflict with Croatian forces in and around the Knin region of Croatia. He has also been involved in a protracted court battle to challenge his extradition. Vasiljkovic lost a High Court appeal against extradition in 2010 and the minister for justice, with final discretion in the matter, determined in November 2012 that Vasiljkovic would be extradited. At the time of writing, Vasiljkovic’s lawyers have appealed the minister’s decision.[2]

Australia’s reluctance to conduct trials

None of Australia’s responses to these instances are satisfactory. The notion that the Australian government only act in response to specific information gleaned from an interview to determine eligibility for refugee status or that it only act in response to a specific request for extradition (especially given that there have only been three such requests in thirteen years) is problematic.

The case of Dragan Vasiljkovic is particularly enlightening. In the cases of Konrad Kalejs and of Charles Zentai, it can at least be argued that neither was an Australian citizen at the time of the alleged offence. Both of them immigrated to Australia after the conclusion of World War II and were subsequently wanted by their countries of origin for alleged war-time atrocities. The same cannot be said for Dragan Vasiljkovic. He was an Australia citizen who travelled from this country back to the Balkans and contributed to the war effort in Croatia. How could successive Australian governments of both political persuasions not take more seriously the importance of trying Vasiljkovic here? If the Australian authorities will not try an Australian citizen for alleged international crimes perpetrated in a foreign country, what possible hope is there that they might be prepared to try a foreign national for similar alleged offences?

I am convinced that there is more to the Australian reluctance to conduct contemporary war crimes trials than simply the ‘don’t bring the conflict to Australia’ argument outlined above. After the disappointments of the 1990s, the prevailing view seems to be that Australian investigations and trials of alleged war crimes perpetrated overseas are expensive, complicated and of limited national benefit. Surely the more appropriate physical location for war crimes trials is in the country where the crimes were perpetrated. Quite apart from the logistical issues of accessing crimes sites, securing forensic evidence, identifying witnesses and obtaining relevant documentary material, the victims of atrocity should be able to follow trial proceedings and see that justice is being done. These are all compelling arguments. But not every country where atrocities are perpetrated is willing or in a position to request extradition of those allegedly responsible—particularly where the relevant government is either itself the alleged perpetrator of the atrocities or has ceased to function effectively. The country where the crime(s) occurred may be incapable of guaranteeing a fair trial or of conducting trial proceedings transparently and with guaranteed security for trial personnel—for judges, prosecutors, defence lawyers and the accused themselves. If the country where the crimes occurred is always the best physical location for trials, why does the international community need an International Criminal Court in The Hague?

But the combination of expense, complications and limited national benefit, strengthened by the view that we risk stoking inter-communal ethnic tensions here by undertaking war crimes trials against one side or the other, produces a potent aversion to trials. Once the Australian government committed resources to the investigation of alleged war criminals in our midst, where would the process ever end? Every time a new wave of immigrants arrives in Australia from a situation of protracted armed conflict there will be some among that community allegedly responsible for atrocities in the country of origin. So the numbers grow and the scale, the sheer magnitude, of the task becomes increasingly overwhelming. Who wants to tackle that sort of problem? Whenever an individual was charged with alleged offences the criticism would be intense: Why him and not these others? Why someone from that party to the conflict when we all know that this other party was engaged in far more routine atrocities? This is not justice—this is a politically motivated witch hunt singling out individuals from just one side of a complex and protracted conflict! Add to the mix of arguments against initiating trials the additional reality that there are no electoral votes in pursuing Australian war crimes trials (in an era of hyper-political sensitivity to electoral concerns) and the orthodoxy of the status quo appears virtually unassailable.

The pragmatics of a multi-faceted argument against Australian trials may be overwhelming but they are not the entire story—there are also important counter-issues of principle. My refusal to accept the inevitability of the status quo is about the sort of Australia I want to live in and the sort of nation with which I want to identify. My preference is that these issues are discussed and debated publicly even if the majority of Australians disagree with the position I advocate here. It is inherent in an informed civic dialogue that others will disagree with the position one takes and it is a distinct possibility that challenging orthodoxy fails to produce policy change. I accept that possibility, but I find the lack of informed discussion disappointing, and I wonder whether or not the orthodoxy prevails because it represents an easier ‘line of least resistance’ rather than a reasoned policy preference. From those who prefer not to try foreign war crimes in Australia, I would want to know why victims of overseas atrocities should be forced to observe the perpetrators of those atrocities living freely among us. Why should Australia be satisfied with a global reputation for inaction in the face of recurrent allegations of war crimes? Canada, for example, has taken a far more proactive stance in the face of similar allegations. The Canadians have a national investigative authority that follows through on allegations of international crimes perpetrated overseas by some who have come to live in Canada. In recent years the Canadians have tried Rwandan nationals as well as some who have come to Canada from the Balkans. The Canadian experience has demonstrated that the concept of war crimes trials is feasible and beneficial.

It seems to me that there is a certain level of hypocrisy in unwavering Australian support for global criminal justice in multilateral forums unmatched by any willingness to proactively investigate allegations of war crimes at home—to assert in New York or The Hague that some crimes are so egregious as to constitute an affront to all of humanity but then, in the absence of an extradition request, to conveniently ignore allegations of similar crimes against a person living comfortably in Glenorchy, in Newtown or in West Torrens.

Several like-minded colleagues and I have met with successive Australian Commonwealth attorneys-general for several years now to push the case for proaction and for political commitment to investigation and trial here. Two principal concerns are raised on a recurrent basis. The first involves the prohibition on retrospective criminalisation of conduct that was not unlawful at the time of its conduct. Our consistent response is to cite the High Court decision in Polyukhovich v. The Commonwealth. To the extent that any new legislation might be necessary to cover gaps in Australia’s existing war crimes law, we already have an important High Court precedent in support of constitutional validity where the relevant conduct was a crime at international law at the time it was perpetrated and would have constituted a crime under Australian law had it been perpetrated here. The second recurrent concern is to know what our major Commonwealth partners—the United Kingdom, Canada and New Zealand—have already done in relation to the same issue. Again, we have assured the attorneys that all three other nations have enacted legislation granting their respective courts jurisdiction retrospectively over offences that unquestionably constituted violations of international law at the time the acts were committed. One recent attorney went so far as to concede that he was ‘almost persuaded’ of the merits of Australian proaction to investigate allegations of foreign war crimes.

The stumbling block is not some legal impediment to a more proactive stance. The real issue is the combination of practical challenges and political pragmatics identified earlier. Imagine this time that you are not just a local member with a particularly aggrieved constituency but that you are also the Commonwealth attorney-general—a member of cabinet with real political influence over this particular issue that falls squarely within your portfolio. How hard would you push in response to a visit from a delegation of concerned individuals keen to see policy change on this issue? Would you be willing to argue the case for a change of policy in cabinet despite the fact that some of your colleagues will not agree with you and will see the initiative as a waste of scarce resources they would much rather see allocated to their own portfolios? What if the president of the foreign country in question is due to make a state visit to Australia next month, and action is deemed likely to introduce a sour note at a sensitive time in the development of the bilateral relationship? Would you be able to summon the energy to confront criticism and outright hostility that will inevitably follow—including, perhaps, from influential circles amongst traditional supporters of your own political party? How would you feel when having taken a principled, just decision you are nevertheless accused of taking sides, and your motives are misrepresented? Would it simply be easier to take a more convenient, less provocative, route to avoid trouble?

Conclusion

Perhaps I am naive and overly idealistic but I yearn for the kind of political leadership that commits to policy because it is right to do so and because it is in Australia’s national interest. That can and does happen from time to time: gun control and the disability insurance scheme are just two examples from opposite sides of the political divide.